Harmon v. Wilson

62 Ky. 322, 1 Duv. 322, 1864 Ky. LEXIS 79

• Court: Court of Appeals of Kentucky
• Decided: February 14, 1864
• Status: Published

Opinions

JUDGE WILLIAMS

delivered the opinion op the codrt :

These causes having been consolidated by order of court, on the appellant’s motion, there was no error in trying both at the same time, and pronouncing one judgment, had it correctly defined the rights of each party; but it was erroneous to pronounce a joint judgment against Daniel Harmon and Robert Harmon, when each, if liable at all, is liable upon two separate bills of exchange, to one of which Daniel is no party, and to the other Robert is no party; besides, these bills are for different sums.

The bill drawn by Daniel Harmon, dated July 3, 1860, at 90 days, payable to Wilson, Hicks & Kensey, for $5,714 .63, accepted by Wm. M. Harmon, was taken up at maturity by the payees, as evidenced by the following words written across its face: “ Paid by Wilson, Hicks & Kensey.” Plaintiffs do not aver that they immediately notified the drawer of its non-payment by the acceptor, but say they did so in a short time! It is evident, from the nature of the transaction, that this bill was made by Daniel Harmon as an accommodation drawer, known to the drawees; if, indeed, it was not made for their accommodation as well as for that of the acceptor. In such case he was entitled to due notice.

Wm. M. Harmon had arranged with the drawees to advance on two thousand barrels of flour, and they were to have the possession and management and sale of the flour. They expected to be profited by way of storage, commission, &c. This bill was drawn in order to raise the necessary means so to be advanced on the flour; therefore, it is but fair to presume it was drawn as much for their accommodation as that of the acceptor; and this conclusion is greatly fortified by their subsequent conduct; for on the day it fell due, or the next day, they took another acceptance from Wm. M. Plarmon for $5,325, at 60 days; and on December 10, 1860, after this fell due, they purchased Wm. M. Plarmon’s land at $4,000, one third of which they retained as margin to cover losses on the flour. Flour still being dull and low, on January 28, 1861, they took another bill for $1,700, at 30 days, drawn by Robert Plarmon, accepted by Wm. M. Harmon, as margin to cover further losses, &c. These circumstances, connected with the evidence of Lee, that he heard Wilson, one of the firm, say to Daniel Harmon, “We released you by taking an acceptance on your son-in-law (Robert Harmon) and William Harmon’s land,” leave but little room to doubt that Daniel Harmon was in fact released, even if he was not an accommodation party for Wilson, Hicks & Kensey; and it was erroneous to adjudge anything against him.

The bill for $1,700, dated January 28, 1861, at 60 days, drawn by Robert Harmon, payable to Wilson, Plicks & Kensey, addressed “To Wm. M. Plarmon, Cincinnati, Ohio,” does not designate the place where drawn; but evidence and circumstances in the case indicate that Robert Harmon was a resident of Kentucky; and as no proof indicates whei’e the bill was drawn, the legal presumption is that it was drawn at the drawee’s residence, and must be regarded as a foreign bill of exchange, being drawn in one State on a person in another State, and the notarial protest is evidence of its dishonor. The notary certifies that he deposited notices addressed to Robert Harmon, Sherburn, Fleming county, Kentucky, in the post-office at Cincinnati, postage paid, the same day of the protest; and other evidence shows that Robert Plarmon got notice of protest, for he spoke of having notice of protest to other persons. That he had due notice of protest and non-payment we think should be regarded as established, prima facie, until rebutted by evidence, which is not done.

Fifty acres of the land purchased by Wilson, Hicks & Kensey from Wm. M. Harmon, having been sold by judgment of court to satisfy a prior lien due by Harmon to the Todds, the value thereof should be deducted from the purchase price, and then a deduction should be made for Mrs. Plarmon’s contingent right of. dower, unless she shall voluntarily relinquish it, according to the principles decided at the present term in Wilson, Hicks & Kensey vs. Dougherty et al., in a controversy about this same land. After thus ascertaining the amount due on this purchase of land by Wilson, Hicks & Kensey from W. M. Harmon, and allowing credit therefor on W. M. Harmon’s account with Wilson, Hicks & Kensey, they will be entitled to judgment over against said William M. Harmon and Robert Harmon to not exceeding the amount of said bill of exchange, interest, and costs thereon, and for any remaining sum against Wm. M. Harmon alone.

Wherefore, the judgment is reversed, with directions to the court below to dismiss the petition against Daniel Harmon absolutely, and for further proceedings against Wm. M. Harmon and Robert Harmon as herein indicated.